Twenty-Fifth Day:
Wednesday, 2nd January, 1946
[Page 223]
DR. KURT KAUFMANN (Counsel for defendant
Kaltenbrunner): I have just heard that during
the afternoon the evidence will concern the
defendant Kaltenbrunner. I therefore regard it
as advisable to make a proposition regarding
Kaltenbrunner immediately, before the recess,
and not in the afternoon.
My suggestion is the following:
I ask that the trial against Kaltenbrunner be
postponed during his absence. Kaltenbrunner, so
far as the proceedings thus far have been
concerned, has taken only a small part. The
reason for his absence is an illness which,
according to my opinion, is of a serious nature,
for it is obvious that in so important a trial
only a very serious illness can bring about the
absence of a defendant and justify it. I have no
doctor's report on his present condition. It
therefore appears to me dubious whether he will
be capable of attending the hearing at all in
the future.
Be that as it may, my present suggestion that
the trial of Kaltenbrunner be postponed is not
in contradiction to paragraph 12 of the Charter.
If a defendant is alive and cannot be brought to
trial in person, then the trial can proceed
against him in his absence. This is particularly
justified if the defendant is concealing himself
and if he thus is obliged to submit to the trial
even in his absence.
But Kaltenbrunner is here in prison. He did not
withdraw hiniself from the trial and he wishes
nothing more than that he may be able to take a
position as regards the accusation. But if such
a defendant is absent through no fault of his
own, it would hardly be consistent with justice
if his trial were nevertheless carried out.
[Page 224]
I do not need to emphasise how much more
difficult the defence's task is made by a
continuation of the trial - indeed, it is made
almost impossible.
THE PRESIDENT: The Tribunal will consider the
application which has been made on behalf of
counsel for the defendant Kaltenbrunner and will
give its decision shortly.
The Tribunal will now adjourn until 2 o'clock.
COLONEL STOREY: If I may make just one statement
in connection with that, if your Honour pleases?
THE PRESIDENT: Yes, certainly.
COLONEL STOREY: The evidence against
Kaltenbrunner will be in connection with the
part he played in these organisations, and we
thought that, in the interest of time, the
individual case against Kaltenbrunner could be
presented simultaneously . Now, if it were not
presented in this connection, it would be within
a few days, early next week, in connection with
the other individual defendants. Counsel
mentions that he probably will not be able to be
here for some time, and 1 thought I would make
that statement.
THE PRESIDENT: Yes.
(A recess was taken until 1400 hours.)
THE PRESIDENT: The Tribunal has considered the
motion made by counsel on behalf of
Kaltenbrunner, and it considers that any
evidence which you were intending to produce,
which is directed against Kaltenbrunner
individually and not against the organisations,
ought to be postponed until the prosecution come
to deal, as the Tribunal understands you do
propose to deal, with each defendant
individually; and the Tribunal thinks that
Kaltenbrunner's case might properly be kept to
the end of the individual defendants, and that
the evidence which is especially brought against
Kaltenbrunner might then be adduced. If
Kaltenbrunner is then still unable to be in
Court, that evidence will have to be given in
his absence.
COLONEL STOREY: If your Honour pleases, I do not
believe that the case, as we have it prepared
now, can be separated as between the
organisations and the individuals.
THE PRESIDENT: No, but if it bears against the
organisations it can be adduced now.
COLONEL STOREY: I understand that, but if your
Honour pleases, I say that the preparation that
we have made is in connection both with the
organisations and the individuals. In other
words, it is a joint presentation. Therefore,
under your Honour's ruling, as taken, it would
have to go over until next week with the
individual defendants' cases, because we
prepared it so that it will affect the
organisations as well as the defendant
individually, because his acts are in connection
with what he has done with the organisations
included; in other words, we have not got it
separated.
THE PRESIDENT: How will that affect you for this
afternoon?
COLONEL STOREY: We can introduce a witness,
next, but if your Honour pleases, in reference
to the witness, he, of course, would affect the
organisations, and incidently would affect
Kaltenbrunner, too. I do not see how
[Page 225]
THE PRESIDENT: Now, of course, all the evidence
which has been given up to date, much of it in
Kaltenbrunner's absence, has in one sense been
against Kaltenbrunner in being evidence against
the organisation of which he was the head.
COLONEL STOREY: Colonel Amen is going to examine
the witness orally, and it is primarily evidence
against the organisations; and, incidentally,
it would affect Kaltenbrunner's individual
liability.
THE PRESIDENT: I think the Tribunal would like
you to go on with the evidence.
COLONEL STOREY: Yes. It has been suggested, if
your Honour pleases, that we might have a few
minutes to confer about the situation, about the
witnesses.
THE PRESIDENT: You wish to adjourn for a few
minutes ?
COLONEL STOREY: Just a few minutes so that we
can confer, as it changes our order of proof.
THE PRESIDENT: Very well.
COLONEL STOREY: Just ten minutes will be
sufficient.
THE PRESIDENT: Yes, we will adjourn now.
(A recess was taken.)
THE PRESIDENT: The Tribunal will now hear the
evidence which the prosecution desires to call,
and in so far as it consists of oral testimony,
the Tribunal will afford counsel for
Kaltenbrunner the opportunity of cross-examining
the witnesses now called, at a later stage if he
wishes to do so.
DR. LUDWIG BABEL (Counsel for S.S. and S.D.): I
was first appointed counsel for the members of
the S.S. and S.D., who in these proceedings have
asked for leave to be heard. My duties were
circumscribed in such a manner that I was to
present to the Court the motions in suitable
form. Not until the Tribunal made its
announcement of 17th December, 1945, was I
appointed as defence counsel for the
organisations of the S.S. and the S.D. As such I
am not working on behalf of a client who could
give me information or instructions for carrying
on the defence. In order to obtain the necessary
information I am, therefore, restricted to
communicating with members of the organisations
I am representing, most of which members are in
prisoner of war camps or have been arrested.
Thus far, because of the shortness of time, I
have not been able to get the necessary
information.
After 17th December, 1945, thousands of requests
were submitted to me by the Court and in the
short period of time, since then, I have not
been able to work on all of them.
According to Article 16 of the Charter, a copy
of the Indictment and of all pertaining
documents - written in a language he
understands - is to be handed to the defendant
within a reasonable time prior to the beginning
of the trial. This provision should, presumably,
be also applied to the indicted organisations.
To serve the Indictment on the organisations is
not provided for in the rules of procedure nor
has the Tribunal so far ordered it.
In view of the very extensive work involved I
personally was not in a position to have copies
prepared in a number sufficient for distribution
to the members of the organisations in the
various camps so that they could express their
views and give me the needed information.
[Page 226]
I therefore submit a motion to postpone the
further discussion of the charges against the
organisations of the S.S. and the S.D. By
visiting the camps, in which there are members
of the organisations of the S.S. and S.D., and
after discussions with them, I shall be able to
obtain the information needed for the defence. I
should like to add that thereby no delay in the
proceedings would be caused and, I presume, this
would in no way place a burden upon the
prosecution.
THE PRESIDENT: If you will allow me to interrupt
you, I understand your application to be, that
you are not in a position to cross-examine these
witnesses this afternoon, and that you wish for
an opportunity similar to that which I have
already accorded to the counsel for
Kaltenbrunner, to be accorded to you. You wish
for an opportunity to cross-examine these
witnesses at a later stage, is that right ?
DR. BABEL: Yes. At the same time, however, I
should like to point out at this moment that,
through the peculiarity of the task that has
been allotted to me, my defence is being made so
difficult that to cover questions subsequently -
THE PRESIDENT: Let us not take up time by that.
Was your application that you might have an
opportunity of cross-examining these witnesses
at a later date ?
DR. BABEL: My motion had that meaning but its
purpose was also to make the defence practicable
and ensure that the witnesses should not be
heard at a time when I cannot make use to the
fullest extent of the privileges granted me by
the Charter.
THE PRESIDENT: The Tribunal is ready to give you
the opportunity of cross-examining these
witnesses at a later date.
LT. WHITNEY R. HARRIS: May it please the
Tribunal.
We submit Document Book BB as a separate
Document Book, relating to the defendant
Kaltenbrunner. This book contains our documents,
from which quotations will be made during this
presentation. Reference will be made to three or
four other documents contained in the Document
Book on the Gestapo and the S.D.
During the past three Court days, the Tribunal
has heard evidence of the criminality of the
S.S., the S.D. and the Gestapo. The fusion of
these organisations into the shock formations of
the Hitler Police-State has been explained from
an organisational standpoint. There is before
the Tribunal a defendant who represents these
organisations through the official positions
which he held in the S.S. and the German Police,
and whose career gives added significance to
this unity of the S.S. and the Nazi Police. The
name of this defendant is Ernst Kaltenbrunner.
I now offer Document 2938-PS as the Exhibit next
in order, USA 511. This is an article which
appeared in Die Deutsche Polizei, the magazine
of the Security Police and S.D., on 15th May,
1943, at Page 193, entitled,
[Page 227]
After the annexation, in which the S.S.
was a decisive factor, he was appointed
State Secretary for Security Matters on
11th March, 1938, in the new National
Socialist Cabinet of Dr. Seyss-Inquart. A
few hours later he was able to report to
the Reichsfuehrer S.S. Heinrich Himmler,
who had landed at Aspern, the Vienna
Airport, on 12th March, 1938, 3 a.m., as
the first National Socialist leader, that
the Movement had achieved complete victory
and that " - the article quotes
Kaltenbrunner -- " the S.S. is in formation
awaiting further orders " - closing
Kaltenbrunner's statement.
"The Fuehrer promoted Dr. Kaltenbrunner on
the day of the annexation, to S.S.
Brigadefuehrer and leader of the S.S.-
Abschnitt Ober Donau. On 11th September,
1938, this was followed by his promotion to
S.S. Gruppenfuehrer." [
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(Part 6 of 9)
COLONEL STOREY continues]
"S.S. Gruppenfuehrer Dr. jur. Kaltenbrunner
was born the son of the lawyer Dr. Hugo
Kaltenbrunner, on 4th October, 1903, at
Ried on Inn, near Braunau. He spent his
youth in the native district of the
Fuehrer, with whom his kinsfolk, originally
a hereditary farming clan, had been closely
connected since olden times. Later he moved
with his parents to the little market-town
Raab, and then to Linz, on the Danube,
where he attended the State Realgymnasium,
and there he passed his final examination
in 1921."
The next paragraph describes Kaltenbrunner's
legal education, his nationalistic activities
and his opposition to Catholic-Christian-Social
student groups. It states that after 1928
Kaltenbrunner worked as a lawyer-candidate in
Linz. The article continues, and I quote,
reading the third paragraph:
"As early as January, 1934, Dr.
Kaltenbrunner was imprisoned by the
Dollfuss Government on account of his Nazi
views and sent with other leading National
Socialists into the concentration camp
Kaisersteinbruch. He caused and led a
hunger strike and forced the Government to
dismiss 490 National Socialist prisoners.
In the following year he was imprisoned
again, because of suspicion of high treason
and committed to the Court-Martial of Wels
(Upper Danube). After an investigation of
many months, the accusation of high treason
collapsed, but he was sentenced to six
months' imprisonment for conspiracy. After
the spring of 1935, Dr. Kaltenbrunner was
the leader of the Austrian S.S., the right
to practise his profession having been
suspended because of his National Socialist
views. It redounds to his credit that in
this important position he succeeded,
through energetic leadership, in
maintaining the unity of the Austrian S.S.,
which he had built up, in spite of all
persecution, and succeeded in committing it
successfully at the right moment.